TMI Blog2023 (2) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... exporter s stand that the said classification was a correct one. The appellant had candidly stated that there was some confusion at the material time. In his statement, he had also candidly admitted that the shipping bill was filed during the period of lock down and that there was a mistake. He had also stated that he was not aware that the goods in question, namely, glucose tested strips contained reagents. He had also stated that they always took due care before filing shipping bill, but due to shortage of staff during the lock down period, a mistake had occurred - it is apparent that the appellant had been remiss, however, the appellant s candid admission must also be read along with his statement that he was not aware that the goods in question contained reagents. It is apparent in the given facts that it cannot be held that the appellant had misconducted itself, thus, the only ground on which the appellant s licence is revoked was failure to comply with the regulations, which would follow in case there was a failure to comply with the obligations under regulation 10 of CBLR, 2018. However, it is also material to note that Regulation 14 confers a discretion on the Principal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed a Shipping Bill (being Shipping Bill no. 2867653 dated 28.05.2022) for export of consignment of Glucose Test Strips classifying the same under CTH 90279090 of the Customs Tariff Act, 1975. According to the respondent, the said goods fell under classification of ITC HS code 38.22 and at the material time, the export of such goods was restricted by virtue of Notification No.59/2015-20 dated 04.04.2020. 4. A show cause notice dated 22.12.2020 was issued to the appellant by the Commissioner (Airport General) alleging contravention of the provisions of Regulation 10 of the Customs Brokers Licensing Regulations, 2018 (hereafter the CBLR, 2018 ) and proposing revocation of the appellant s license and forfeiture of the security deposit under Regulation 14 of the CBLR, 2018. 5. Thereafter, an Inquiry Officer (hereafter IO ) was appointed to inquire into the allegations. He submitted his report dated 22.03.2021. The IO found that the appellant had violated the provisions of Regulation 10(e) of the CBLR, 2018 read with erstwhile Regulation 11(e) of CBLR, 2013. He noted that both the importer as well as the appellant had, in their statements, admitted that the goods in quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... core issue that 'Glucose Testing Strips' is restricted goods covered by notification no. 59/2015 -20 dated 04.04.2020. 11. The learned counsel appearing for the appellant fairly states that the question no.(ii), as noted above, does not arise for consideration as there is no dispute regarding classification of goods. He further submits that the question whether the learned Tribunal was justified in sustaining an order of revoking the CB license, forfeiting security and imposing penalty would survive as mens rea or any mala fide intent could not be imputed to the appellant. He submitted that at the material time, there was some confusion as to whether the goods in question would fall under classification CTH 90279090 or Chapter 38 of the Customs Tariff Act, 1975. Though the goods were correctly described, the same were classified under CTH90279090. 12. The learned counsel for the appellant also referred to certain communications exchanged between the exporter and the Department which indicates that the exporter was proceeding on the basis that the restriction under notification dated 04.04.2020 (Notification No. 59/2015-20) was confined to testing kits relating to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the export of diagnostic kits. The relevant extract describing the goods restricted under the said notification reads as under:- Notification No, 59/2015-2020 New Delhi, Dated: 04thApril 2020 Subject: - Amendment in Export Policy of Diagnostic Kits- reg. S.O. (E) In exercise of powers conferred by Section 3 of the Foreign Trade (Development Regulation) Act, 1992 (No. 22 of 1992), as amended, read with Para 1.02 and 2.01 of the Foreign Trade Policy, 2015-20, the Central Government hereby makes the following amendments in the schedule 2 of the ITCHS Export Policy related to export of Diagnostic Kits, with immediate effect: Serial Number ITCHS Codes Description Present Policy Revised Policy 207 G 3822 Diagnostic Kits [Diagnostic or laboratory reagents on a backing, preparation Diagnostic or laboratory reagents whether or not on a backing, other than those of heading 3002 or 3006; certified reference materials] Free Restricted 2. The provisions und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that C.B. did not exercise due diligence at the time of filing of Shipping Bill and also failed to advise the exporter to comply with the provisions of the Act. 21. It is seen from the above that although the said order does not, in any manner, restrict the Commissioner from concluding the proceedings regarding revocation of license but it does indicate that the Commissioner at the material time had taken a view keeping in mind the proportionality of the punitive measures imposed on the appellant. 22. It is also material to state that the consignment of Glucose Test Strips was held up at the material time on the ground that the items were restricted. In this regard the exporter and the Department had exchanged correspondence. It is not disputed that the consignment was finally cleared. Admittedly, the goods in question were correctly described as Glucose Test Strips in the Shipping Bills and these goods were exported after the initial hold up. It is, thus, not difficult to accept that at the material time, there may have been some confusion as to the classification of the goods as has been contended by the appellant. 23. The allegation against the appellant is that h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er had classified the goods in question under CTH 90279090. It is the exporter s stand that the said classification was a correct one. The appellant had candidly stated that there was some confusion at the material time. In his statement, he had also candidly admitted that the shipping bill was filed during the period of lock down and that there was a mistake. He had also stated that he was not aware that the goods in question, namely, glucose tested strips contained reagents. He had also stated that they always took due care before filing shipping bill, but due to shortage of staff during the lock down period, a mistake had occurred. 27. In view of the aforesaid admission, it is apparent that the appellant had been remiss, however, the appellant s candid admission must also be read along with his statement that he was not aware that the goods in question contained reagents. The question whether the revocation of license is justified in the facts of the case must be considered in the aforesaid facts. 28. Section 14 of the CBLR, 2018 relates to revocation of license and imposition of penalty. The said section is reproduced below: - 14. Revocation of licence or imposition ..... X X X X Extracts X X X X X X X X Extracts X X X X
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